V.N [Cameroon] v Minister for Justice and Law Reform and Another

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date16 February 2012
Neutral Citation[2012] IEHC 62
CourtHigh Court
Date16 February 2012

[2012] IEHC 62

THE HIGH COURT

[No. 95 J.R./2011]
N (V) [Cameroon] v Min for Justice & Refugee Appeals Tribunal
[2012] IEHC 62
MR JUSTICE COOKE
APPROVED TEXT
JUDICIAL REVIEW

BETWEEN

V. N. [Cameroon]
APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS

EEC DIR 2004/83

L (S) [NIGERIA] v MIN FOR JUSTICE UNREP COOKE 6.10.2011 2011 IEHC 370

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011 IEHC 381

A (MA) v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

O (N) v MIN FOR JUSTICE & ORS UNREP RYAN 14.12.2011 2011 IEHC 472

I (P) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 11.1.2012 2012 IEHC 7

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

D (N) [NIGERIA] v MIN FOR JUSTICE UNREP COOKE 2.2.2012 2012 IEHC 44

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EEC DIR 2005/85 ART 39

EEC DIR 2005/85 ART 3(3)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S17(1)

EEC DIR 2005/85 ANNEX I

J (KJ) v REFUGEE APPEALS TRIBUNAL & ORS UNREP COOKE 4.3.2011 2011 IEHC 77

D (HI) (A MINOR) & A (B) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 9.2.2011 2011 IEHC 33

EEC DIR 2005/85 ART 2(D)

M (P) v MIN FOR JUSTICE & ORS UNREP HOGAN 28.10.2011 2011 IEHC 409

F (ISO) v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

LOFINMAKIN & AMONUSI v MIN FOR JUSTICE UNREP COOKE 1.2.2011 2011 IEHC 38

DIOUF v MINISTRE DU TRAVAIL DE L'EMPLOI ET DE L'IMMIGRATION 2012 1 CMLR 8

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 263

IMMIGRATION LAW

Subsidiary protection

Deportation - Effective remedy - Principle of equivalence - Relationship between subsidiary protection and refugee status - Findings of adverse credibility by Refugee Appeals Tribunal - Findings taken into account by first respondent in decision on subsidiary protection - Whether first respondent obliged to take findings into account - Whether first respondent obliged to reconsider findings where application for subsidiary protection based on same facts as asylum application - Whether right to full appeal against decision on subsidiary protection - Whether judicial review effective remedy - Status of refugee appeal - Status of subsidiary protection -Whether breach of principle of equivalence - L(S) (Nigeria) v Minister for Justice and Law Reform [2011] IEHC 370, (Unrep, Cooke J, 6/10/2011); A(BJS) (Sierra Leone) v Minister for Justice and Equality [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); A(MA) (Nigeria) v Minister for Justice and Equality (Unrep, Cooke J, 19/12/2011); O(N) v Minister for Justice and Equality [2011] IEHC 472, (Unrep, Ryan J, 14/12/2011); I(P) v Minister for Justice and Law Reform [2012] IEHC 7, (Unrep, Hogan J, 11/1/2012); D(N)(Nigeria) v Minister for Justice and Law Reform [2012] IEHC 44, (Unrep, Cooke J, 2/2/2012); J(KJ) v Refugee Appeals Tribunal [2011] IEHC 77, (Unrep, Cooke J, 4/3/2011); D(HI) v Refugee Applications Commissioner [2011] IEHC 33, (Unrep, Cooke J, 9/2/2011); Lofinmakin v Minister for Justice, Equality and Law Reform [2011] IEHC 38, (Unrep, Cooke J, 1/2/2011); M(P) v Minister for Justice and Law Reform [2011] IEHC 409 (Unrep, Hogan J, 28/10/2011) and F(ISO) v Minister for Justice, Equality and Law Reform [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010) approved - Diouf v Minstre du Travail (Case C- 69/10) [2011] ECR I-07151 distinguished - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Refugee Act 1996 (No 17), ss 13 and 17 - Council Directive 2004/83/EC - Council Directive 2005/85/EC, arts 2, 3.3 and 39, Annex I - Charter of Fundamental Rights of the European Union 18/12/2000 (2000/C 364/01), art 47 - Treaty on the Functioning of the European Union 30/3/2010, art 263 - Application refused (2011/95JR - Cooke J - 16/2/2012) [2012] IEHC 62

N(V) (Cameroon) v Minister for Justice and Law Reform

Facts: The proceedings considered the question of whether a failed asylum seeker from Cameroon who was declared ineligible for subsidiary protection by the determination of the first named respondent was entitled in law to a right of appeal against that decision. The applicant had been granted leave to review a decision determining that the applicant was not eligible for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 and a deportation order had been made against the applicant also. It was argued that the Minister had simply made his own negative credibility findings and had not made his own independent determination and that Case 69/10 Diouf, judgment of the Court of Justice [2011] ECR I-000 (28 July 2011) entailed an appeal by way of de novo rehearing was required as a matter of EU law.

Held by Cooke J. that the Court of Justice had not held that the effective remedy required the provision of an appeal by way of rehearing on the merits as claimed by the applicants. The Court considered that the ground had not been made out and the application would be refused.

1

1. By a judgment and order of the 17 th November, 2011, the applicant was granted leave by Dunne J. to apply for judicial review of a decision of the first named respondent made on the 11 th January, 2011, determining that the applicant was not eligible for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 ("the 2006 Regulations") and of the deportation order made in respect of the applicant on the 13 th January, 2011.

2

2. Leave was granted on the basis of a single ground as follows:-

"The ground upon which the said reliefs are sought is that the applicant has a right of appeal against the determination that he is not eligible for subsidiary protection and that the respondent cannot therefore reach a lawful decision to deport the applicant until that appeal has been determined. The applicant's right of appeal against that determination arises because he had a right of appeal in respect of his refusal of the most approximate domestic entitlement,namely a recommendation that he be declared to be a refugee in accordance with the Refugee Act 1996, and therefore, by virtue of the principle of equivalence in European law, he must have a like right of appeal in respect of his refusal of the European law entitlement of subsidiary protection."

3

3. In other words, the issue raised in this application is based upon the proposition that a failed asylum seeker who is declared ineligible for subsidiary protection by determination of the first named respondent is entitled in law to a "right of appeal" against that decision. In particular, it is asserted that under European Union law such an applicant is entitled to an "effective remedy" against such a first instance determination and that the principle of equivalence in European Union law requires that the remedy be equivalent to that available in national law in a procedure prescribed by national law for the protection of a comparable right. Because, it is said, there is a right to appeal from the first instance determination of a claim for asylum made by the Office of Refugee Applications Commissioner to the Refugee Appeals Tribunal, that facility for appeal under national law (the Refugee Act 1996) must be replicated by a corresponding appeal against a determination made in a procedure as the latter determines a right derived from European Union law, namely CouncilDirective 2004/83EC ("the Qualifications Directive").

4

4. The leave judgment of the 17 th November, 2011, was given following a hearing of the leave application which had taken place on 31 May 2011. It appears that in the interval the attention of Dunne J. had not been drawn to the fact that the same issue had been the subject of several other judgments of the High Court in which the proposition upon which the ground was based had been rejected as unfounded.

5

5. These judgments included the judgment of this Court in S. L. (Nigeria) v. MJELR of the 6 th October, 2011 and B.J.S.A. (Sierra Leone) v. MJELR of the 12 th October, 2011 ( [2011] IEHC 381). It has also been rejected by Birmingham J. in a judgment of the 24 th March, 2011, in M.A.A. v. MJELR. The issue has subsequently been considered again in the judgment of Ryan J. of the 14 th December, 2011 ( N.O. v. MJELR) and of Hogan J. of the 11 th January, 2012 in P.I and E.I. v. MJELR. In the judgment of this Court all possible nuances of the arguments upon which this ground is advanced have been thoroughly considered in those judgments and nothing has been submitted in the hearing of the present application which could justify this Court departing from the conclusions that have been reached in those judgments.

6

6. The applicant is an English speaking national of the Cameroon and comes from its North West province which had previously been a part of the British Cameroons. He arrived in Ireland in July 2006 and claimed asylum. His asylum claim was based upon his account of having previously suffered persecution for political reasons in his country of origin. He said that, like his father, he had been an active member of a separatist movement. He joined the Southern Cameroon's Youth League and was involved in campaigning for independence. He claimed his house had been raided on a number of occasions by police looking for documents held by his father. In January 2000, he had been arrested and held in prison for five years without charge. He claimed to have been mistreated in jail.

7

7. His asylum application was the subject of a negative recommendation by the Commissioner in September 2006 and this was upheld on appeal by the Tribunal by a decision on the 1 st February, 2008. In essence, the applicant's claim was rejected upon grounds of lack of credibility as to his account of political involvement and resulting mistreatment.

8

8. On the 25 th April, 2008, an application...

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